An extraordinary lapse of good Judgement

Sunday Times

The fact that the Bar Association of Sri Lanka (BASL) had accepted sponsorship from tainted primary dealer Perpetual Treasuries for the holding of the 2016 Law Asia conference led to incredulous responses in some quarters when this fact was initially disclosed some weeks ago.

Before long however and in the nature of all things in this country, this was allowed to gently slip by into the ether of forgetfulness, even as the incumbent in the post of the President of the Bar sought to pass the disclosure off with an airy shrug and the explanation that this sponsorship (accepted prior to his term) was nothing extraordinary and that the funds were legally accounted for.

Integrity of the funding

But make no mistake that this explanation is, by itself, quite extraordinary, quite apart from the very fact of the sponsorship. The main issue here is not the legal accounting of the funds or indeed, who signed off on the acceptance thereof and conflicts of interests arising or not as the case may be. And at no point was an allegation made that the fund had been swindled by the Bar. The question is far more minimalistic.

It concerns the integrity of the funding being given in the first instance and the suspect connections of the man behind the sponsorship, now led out periodically in handcuffs for court hearings.Regardless of protests therein, it must surely be accepted that this was no ‘ordinary scam’, this was no ordinarily deviant businessman and certainly, this was not like any other sponsorship quite apart from the question as to whether the funds were solicited/canvassed or accepted along with other sponsors.

Rather, it is indisputable that one of the Bar’s flagship annual talkfests had been financed by a company in the centre of a scam involving bond transactions of the Central Bank that has been responsible almost singlehandedly for cutting the democratic ground away from this administration and catapulting this country to a dangerously slippery slope of non-accountability for high financial fraud.

A blush and a shrug is not enough

The scam has already defined the ‘yahapalanaya’ administration by its singularly mortifying stamp. The costs have been considerable with the United National Party’s moral high ground to complain against the corruption of the Rajapaksas dissipating to virtual nothingness as a result. It has incurred very heavy electoral punishment and will probably need to prepare itself for worse, barring an economic miracle in the short time left in store.

Let it be said strongly therefore that a shrug, a blush and a flimsy excuse is no way to deal with a disclosure that should be viewed with far more gravitas by the Bar. And as much as ignorance of the law is no excuse, the leadership of the Bar at the time cannot profess naivete in regard to who was Arjun Aloysius or what was Perpetual Treasuries when the funding was accepted.

True enough, neither the primary dealer nor his company had been under formal investigation at the time. But when the LawAsia conference was held in 2016, this particular primary dealer and his company had already become a virtual household name. The first controversial treasury bond auction had taken place in February 2015 and four months later, the first investigation had been held by a 13-member Special Parliamentary Investigation Committee whose interim report was thereafter ‘leaked’ to the media, causing consternation in regard to details of what became known later, as a monumental financial scandal and provoking a nasty reaction from the Government.

Dissolution of the Parliament thereafter prevented this report from being taken further though the later report by the Committee on Public Enterprises (COPE) dealt comprehensively with the matter, followed by long drawn out hearings and a damning report of a Presidential Commission of Inquiry.

Accountability standards must apply to all

And the larger question concerns as to how and why the Bar should consider itself immune from accountability standards that apply to others? In other words, if such a furore can arise over Government parliamentarians accepting money from Aloysius and rightly so, as it casts doubts on the integrity of decisions taken by these worthies in respect of parliamentary inquiries into his conduct, by what logic does this not hold true for powerful professional lobbying bodies such as BASL? If reports that former President Mahinda Rajapaksa and the members of his family accepted ‘donations’ to their institutional and personal funds can cause a scandal as well they should, it is only a small step from that to the county’s main body of lawyers accepting tainted funds and worse, professing that there is nothing really wrong about that.

So let us be quite clear. Accountability in terms of funding does not and should not apply to political parties or politicians only. While the law in respect of campaign finance should be tightened by all means and necessary policy measures taken in regard to the same, that scrutiny should be similarly applied to professional bodies and their sponsors.

This fracas speaks to a lamentable slide from the energy that once vitalized the Bar to forcefully move against threats and intimidation by the Rajapaksa regime involving sending its goons into Hulfsdorp and unceremoniously sacking a sitting Chief Justice. At that time, the provincial Bar Associations, ranging from the Southern Bar to the far flung zonal divisions of the Central, Uva and Northern provinces came together transcending political loyalties of individual lawyers to protest against excesses of a political family running wild. That energy quickly dissolved from 2015 onwards when key voices of the Bar were perceived as aligned to one political faction at one point and then to the other, with disastrous impact on the public legitimacy of the entire association.

The socio-legal relevance of the Bar

While capturing that apolitical energy remains a key challenge, other questions remain. Lawyers in Sri Lanka are perceived as being occupied only in their individual practice with little concern regarding larger issues of social justice. A base preoccupation with money and money alone predominates. These are the points at which change has to begin.

Phrases such as the independence of the judiciary and the independence of the Bar must not be perceived as theoretical maxims and an abstract preoccupation only of the elite. The effort of the Bar must not be to cajole politicians to provide it with greater facilities and privileges. Instead, it must return to a state of socio-legal relevance in this country.

Certainly, the first step in this arduous journey must be to enforce rigorous standards of transparency and accountability in its own functioning.

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